Mediation

Contributed by HenryMoser and current to 27 July 2018

Mediation can be considered in most situations of conflict. Two criteria are essential for mediation to be commenced. The people in dispute need to be able to speak on their own behalf, alone or with professional support, and they need to be focussed on finding a resolution.

The examples which follow are a small sample of the areas in which mediation is used in Western Australia. In some cases, mediation is a statutory pre-condition to arbitration or litigation, while in others it is optional.

Aged care

The Aged Care Complaints Resolution Scheme is provided by the Commonwealth Department of Health and Aging. The Scheme is a free service which will engage a professional Mediator if appropriate to resolve complaints about the health, safety and/or welfare of people receiving aged care.

Commercial

Due to the importance of maintaining professional working relationships, many commercial disputes are resolved through courts, community and private mediation.

Family

As well as family law mediation, community-based or private mediation can assist with other disputes involving family members such as those regarding wills or overcoming estrangement, where a guided discussion will assist people to manage the high emotions of family relationships.

State Administrative Tribunal

The State Administrative Tribunal is the main forum for people to challenge decisions by government departments. The Tribunal provides access to a system which will focus on informality and mediation. Mediation is conducted by Tribunal officers in relation to a diverse range of issues including discrimination and sexual harassment complaints, resource and development issues, commercial and civil matters and vocational regulation.

Insurance settlements

Insurance companies and claimants use both court-based and private Mediators to attempt to resolve insurance claims.

Neighbourhood disputes

Courts, community-based and private Mediators assist with resolving disputes between neighbours including dividing fence issues and noise levels.

Sport

The Department of Sport and Recreation, in collaboration with the Australian Sports Commission (ASC), encourages disputes in sports settings to be resolved through mediation. Contact your MPO (Member Protection Officer) for the ASC list of approved Mediators.

Victim-offender

The Department of Justice offers mediation between victims and offenders to provide the opportunity for each to contribute to an agreement relating to reparation for the crime or other appropriate sentencing options.

Workplace issues

Government, community and private Mediators provide mediation to assist people to reach agreement on workplace disputes, especially those which may arise following organisational change. Many employers will have a complaints officer to help resolve disputes before they become formal. Both the Western Australian and Federal Industrial Relations Commission undertake mandatory conciliation between employees and employers in unfair dismissal applications and in relation to other workplace disputes.

Workers' compensation

A referral for conciliation may be made as soon as there is a dispute on a workers’ compensation claim. Conciliation officers make every attempt to resolve disputes by agreement. The conciliation process commences within 14 days or as soon as practicable after a dispute has been referred by a worker or other party to the Director of Conciliation and Review.

Native Title

The National Native Title Tribunal acts as Mediator in attempting to resolve native title claims in WA before they are litigated in the Federal Court. The main parties to such mediations are the native title applicants, the State of WA and other private respondent parties such as pastoralists or mining companies.

The Mediation Process

The following provides a brief description of the mediation process, the roles of participants, Mediators and lawyers. Note that the suitability of mediation is assessed continuously by all involved. As mediation is voluntary, the participants or the Mediator can withdraw at any time if they believe the mediation is no longer suitable. There is no need to give a reason for withdrawing, other than that the mediation no longer seems suitable.

Step 1: In-take

In separate sessions and/or in a preliminary conference, an assessment is made by the Mediator, based on an interview with each participant and their advisors and/or support people, as to the suitability of mediation. This is an assessment of whether a level playing-field can be established so that the legal issues and personal issues can be resolved fairly. Based on an understanding of the causes of the dispute, participants’ concerns and the power dynamics of the relationships, the Mediator facilitates a dialogue in which each participant is most likely to be able to listen to and speak to the other respectfully. Some of the many ways in which this is accomplished include

• Discussion is limited to only those issues which all participants agree to discuss;
• Guidelines for discussion are provided; and
• Breaks are held during the joint sessions to enable all parties to tell the Mediator in strict confidence whether the mediation process appears fair.

During the in-take session, confidentiality is discussed. As mentioned above, discussion which takes place in a mediation cannot generally be used in a court setting. That is, the mediation takes place on a ‘without prejudice’ basis: it is confidential within the limits of the law.

Preliminary conference

In addition to, or instead of, separate in-take sessions, a preliminary conference of parties and their professional advisors may be held for similar purposes.

Step 2: Joint sessions

Following the separate sessions and/or preliminary conference, participants usually meet face-to-face in one or a series of meetings in which the participants decide what issues they are willing to discuss and to attempt to resolve. Sometimes all or part of a mediation is conducted by telephone, by video or on-line. The Mediator manages this process.

One of the first points on which agreement is sought to be reached concerns confidentiality. In some settings, complete confidentiality is a requirement of the process. In others, participants agree on which aspects of the mediation will remain confidential and which aspects can be discussed with other people.

Early in the joint sessions the Mediator provides the opportunity for each participant to explain their point of view of the dispute and also their goals for the future in relation to the other participants. Often, participants are invited to make an “opening statement” to put forward their issues and interests.

The opening statements are used to set the agenda which in turn guides the discussions which are facilitated by the Mediator.

Later in the joint sessions, the participants are encouraged to develop creative solutions which meet the interests of all concerned and which comply with the law. A mediated agreement is one that should appear better to each of the participants than an outcome that could have been obtained in another way. For example, if a commercial dispute is resolved in a court, the main outcome is likely be a determination of a financial settlement to be paid by one party to another. By contrast, a mediated outcome is likely to include, in addition to a financial agreement reached by the parties, extra value: such as perhaps a payment plan at a pace to suit the payer; and/or part payment in kind, perhaps by provision of a service, such as marketing a product.

Sometimes parties break again into separate sessions to have confidential discussions with the Mediator(s), their lawyers and/or their support person, or just to have a break and gather their thoughts.

Step 3: Agreement

If an agreement is reached, as it is in approximately 80-90 per cent of mediations, the agreement may be written down and become enforceable, or may be voluntarily complied with, depending on the setting in which the mediation took place and on the participants’ preferences.

Mediated agreements commonly include:

• apologies and acknowledgement;
• agreements regarding future behaviour between the parties;
• terms regarding financial settlement;
• tasks to be done by participants; and/or
• interim agreements and schedules for review.

When mediation results in an agreement on all of the issues under discussion, there are usually some steps to take to formalise the agreements. Refer to the section on roles of participants and lawyers further below.

When a partial agreement (or no agreement) is reached, participants can decide how to resolve the remaining issues. Some choose to continue to negotiate, either directly or through lawyers, some choose to go to court; some choose arbitration or a tribunal and some choose to abandon pursuit of the issue. Sometimes participants go to the media.

Who's who in a mediation

The following provides an overview of the usual participants in a mediation process.

Participants

As the mediation ‘belongs’ to the participants they have a significant and active role to play before, during and after each session of the mediation.

Although mediation is ‘interests’ based, it is important for participants to obtain information and advice about their rights prior to mediation commencing and/or during and/or after the mediation.

Mediation works well when participants are committed to finding a mutual solution. One way to decide whether to commit to mediation is to explore other processes of dispute resolution and the likely timelines, costs and outcomes.

Following the mediation participants may be obliged to or may choose to register the agreement, and/or to return to mediation if an issue relating to the agreement cannot be resolved by direct negotiation among the participants. It is usual that a mediated agreement includes a commitment to returning to mediation if a related dispute arises, so that all participants know that they will first have an opportunity to resolve any future disputes cooperatively, before adversarial methods are considered.

Mediators

Disputes are complex and unique. Much of a Mediator’s work is in the preparation for the mediation. This includes:

• diagnosing the causes of the conflict;
• analysing the current conflict; and
• considering the suitability of mediation.

Throughout the mediation the Mediator will manage the process by providing ample opportunity for each participant to:

• focus on the future;
• listen to each other;
• explain their point of view;
• suggest possible options for agreement;
• negotiate; and
• make considered decisions.

Throughout the mediation the Mediator will continue to assess the suitability of the situation for mediation. Following some mediations, Mediators draft ‘heads of agreement’ if parties are not represented by lawyers. When a mediation is completed most Mediators destroy their notes as part of the confidentiality agreement reached at the commencement of the mediation.

Professional advisors, including lawyers, accountants and psychologists

In some mediation settings, including neighbourhood mediations, participants are rarely accompanied by lawyers. In others, including commercial mediations, parties are usually represented by lawyers. When lawyers are involved in a mediation, much of their role is in the preparation stage, as it is for litigation.

It is often lawyers who, after consulting with the other participants’ lawyers, may refer clients to mediation. When mediation has been agreed to and assessed as suitable by the participants and the Mediator, lawyers will clarify and explain the ‘Agreement to Mediate’ to their clients.

The ‘Agreement to Mediate’ is often a formal document which describes the process of mediation and the roles and obligations of everyone who attends. By signing it, parties, professional advisors, other support people and the Mediator(s) are making a commitment to interact in a way which is conducive to a mediated outcome being reached, if appropriate. In some settings, the Agreement to Mediate is a verbal one. Professional advisors will explain the process, the roles of all involved, and the philosophy of mediation. In particular, ethical issues, especially regarding confidentiality and voluntariness, should be explained and discussed. A written Agreement to Mediate confirms this.

When the mediation requires it, professional advisors’ roles include identifying and arranging for the exchange of documents before the mediation commences.

Although a lawyer is rarely an advocate in a mediation setting, there is still the need to take instructions and to provide advice regarding an appropriate range of outcomes. Lawyers can assist participants to prepare for a mediation by discussing their client’s opening statement in terms of legal as well as personal concerns.

The role of lawyers and other professional advisors during the mediation varies considerably from mediation to mediation. Some accompany clients to mediation; others arrange to be available during mediation and between mediation sessions, while others assist after an agreement is reached by drafting and filing documents at court. Whether present or not, the role of the lawyer continues to include:

• screening for ongoing appropriateness;
• advising and taking instructions;
• encouraging the client to ‘air’ concerns;
• encouraging the client to generate his/her own options for settlement;
• supporting the mediation process and the Mediator; and
• drafting interim agreements.

Lawyers and other professional advisors who are present during the mediation also have the role of calling a break whenever they need to speak with their client.

Following a successful mediation, the lawyer may draft formal documentation recording the agreement reached and addressing any remaining legal issues.

What does mediation cost?

The cost of mediation varies considerably, depending on who provides it. In some situations it may be free, for example under the Aged Care Act 1997 (Cth); in other situations a small fee may be charged, for example at some Community Legal Centres. Community organisations such as Relationships Australia usually charge on a sliding scale for family law mediations and at a commercial rate for other mediations. Private Mediators charge according to their rates and usually, but not always, distribute the fee equally among all parties. In addition, there may be fees for professional advisors whether or not they attend the mediation.

It is important to compare the costs and benefits of mediation with the costs and benefits of other processes, as well as with the costs and benefits of taking no action.

Mediation and the court process

How is mediation different from going to court?

There are advantages and disadvantages of going to court. Depending on the circumstances the following points will be variously attractive to disputants.

A determination made by a court is:

• made by someone who has been able to consider only the legal aspects of the dispute;
• public;
• based on past incidents;
• largely observed by parties;
• often expensive; and
• often time-consuming.

A mediated agreement, on the other hand, is:

• reached by parties to the dispute, considering their interests in the context of their rights;
• private;
• future-focussed;
• usually cheaper than court; and
• usually faster than court.

Training of mediators

Mediators have to be accredited under the National Mediator Accreditation System (NMAS). They have to undergo training and assessment for accreditation under the NMAS Accreditation and Practice Standards.

Accreditation has to be renewed every two years and Mediators have to establish both further training and practical experience in the previous two years.

Established training organisations, which focus on and, in some cases, assess mediation skills, include:

• Resolution Institute
• Australian Institute of Family Law Arbitrators & Mediators (AIFLAM)
• University of Western Australia Mediation Clinic

Mediation providers

There is a variety of mediation providers in Western Australia. In addition to the court-annexed mediation services, a number of agencies provide a range of mediation services. Current addresses and contact details should be verified on the web. As mediation is a rapidly evolving field it is wise to check specific details of range of services, cost and availability, as well as statutory requirements, as part of preparing for mediation.